A HISTORY OF AND OBJECTIONS TO THE TOWN OF CARMEL’S PROPOSED NEW CLUSTER LAW PUBLIC HEARING, CARMEL TOWN HALL 6/5/02  by Matthew J. Bennett

Riverkeeper has made clear in its memorandum to the town that the cluster law under consideration tonight is closely tied up with the Links development. Indeed, it appears that under state law a review of the cumulative potential impacts of both proposals will have to be undertaken before either matter may proceed. That being the case, and given the confusing nature of the proposed law when taken out of context, it seems necessary to me to review the steps that have led to tonight’s hearing before addressing my specific objections.

In recommending the rejection of an earlier Links application, Town Counsel, among other things, made it clear in a letter to the Planning Board dated 12/16/98 that all open space in a cluster development, including golf courses, would have to be owned by a homeowners’ association. The developer Paul Camarda found that unacceptable. He resubmitted his application the day before our moratorium went into effect and then, on June 12, 2001, had his attorney, William Shilling of Curtiss, Leibell and Shilling, petition the ZBA for an interpretation of the same cluster law that Mr. Costello had so cogently explicated two and a half years earlier.

The ZBA took up the issue on June 28. Mr. Shilling, in a written submission, had cited several cases, but none to my knowledge directly addressing the issue of “open” versus “common open” space, even though that distinction became the key to the ZBA’s decision and the impetus for the creation of the proposed law now under consideration. In 1998, in discussing Mr. Camarda’s first application, Riverkeeper had questioned the applicability of some of the same cases mentioned by Mr. Shilling. Mr. Costello’s letter from that year had also seemed to reject assertions made in the 1998 submission that were very similar to Mr. Shilling’s. Still, and even though Mr. Costello was present at the 6/28 meeting, the ZBA Chairman, Joseph Girven, refused to seek any legal opinion other than that expressed in Mr. Shilling’s letter and instructed his board that it had to find for the applicant.

Mr. Girven often seems inordinately disposed toward the positions taken by Curtiss, Leibell and Shilling. He is, or has been, a friend, associate, representative and fundraiser for Senator Leibell and, indeed, Mid-Hudson Realty Corporation, a Camarda company, made a $500 dollar contribution to the Senator’s campaign the day after the ZBA rendered its decision. This apparent linkage between Mr. Girven, Senator Leibell, and the Senator’s law firm has led the town’s Ethics Board to unanimously recommend that Mr. Girven recuse himself whenever the firm of Curtiss, Leibell and Shilling is before the ZBA.
On July 5, 2001, Chairman Girven, at the behest of his board (most notably Mark Fraser), requested that the Town Board “change the statute if your board wishes to clarify the language of the statute.” This the board did brilliantly in the proposed law which was the subject of a public hearing held on 10/17/01 and continued on 12/19/01, with an intervening resolution of positive recommendation from the Planning Board on 11/14. Essentially, this law just eliminated the term “open space” and replaced it throughout with “common open space.” The text is unambiguous and, indeed, a model of clarity. On 12/19 the Town Board rejected it.

Several work sessions in January of this year led to the law that is before us tonight. At the 1/30 session it became quite apparent that this law has been drafted in large part (if not completely) to accommodate Mr. Camarda to the likely detriment of the rest of our community: in other words, it is spot zoning writ large. Talk of “flexibility” is specious as, since we lack the infrastructure to support our existing homes, we should do nothing to facilitate the construction of even one more residence in the town.

Mr. Costello, in his 12/16/98 letter, as well as in comments to the Planning Board on 12/12/01 (page 15 of the minutes) states very clearly the case against double use of the same land, which is perhaps the most dubious portion of the proposed statute. The town would not permit me to join with my neighbors and put a ball field or driving range in our collective front yards, and the town would never allow a developer to sell a house and retain ownership of its yard, or deed it to the town, but what you have proposed here is equally ridiculous.

When clustering was an option for the developer, one could conceivably argue that requiring both recreational land and a recreation fee was a legitimate charge for the town’s added flexibility. Our new master plan states, however, that the Planning Board may require clustering. It seems wrong to impose an extra charge for doing something that is favored by town policy and may be mandated by the Planning Board.

The town seems willing to take more land, but does not include any plan for its maintenance or any projections of its cost to the taxpayers. Except for a prohibition on amusement parks, there is no guidance given as to acceptable recreational uses. It is also unclear whether commercial recreational establishments other than Centennial Golf Course are permissible. Under the proposed law may golf carts only be used at Centennial or may they be used on other existing or to be built recreational space? It’s easy to envision golf cart races on the ball fields; that use is certainly not prohibited by this law. Finally, under what definition may any type of open space, common or otherwise, be paved?

The proposed statute is intended to be a clarification of existing law. Before going any further, it would be prudent to poll the various attorneys present tonight to see if litigation will be more or less likely under the new law. It seems probable that our boards and courts will become clotted with all the applicants and litigants attempting to make some sense of it. Untested assertions by Mr. Camarda’s attorney to the contrary, our current law is clear, coherent, and has served us well for 20 years. The law discussed last fall was even better. The legislation before us tonight is a Frankenstein’s monster, stitched together from disparate swatches of bad ideas and animated by a developer’s desire to do his project his way regardless of the consequences. The townspeople knew what to do with the monster, and this law should share that creature’s fate.



Matthew J. Bennett